Motion for arbitration in oklahoma

[Okiemom 0]

So what would a motion for arbitration look like for Oklahoma? And the affidavit to attach to said motion? I need to look at filing one soon. but probably file an answer to petition for indebtedness from love Beal nixon

[Brotherskeeper 909]

 @Okiemom Do you know your court deadline to respond to avoid a default judgment against you?

Is the plaintiff an original creditor or debt buyer? Who is the original creditor?

Was a copy of the account agreement attached to the Complaint?

When was the last time a payment was made on the account?

Do you know if your rules require you to assert arbitration as an affirmative defense in your Answer, or the defense is waived?

56 minutes ago, Okiemom said:

So what would a motion for arbitration look like for Oklahoma?

(I am not a lawyer. IANAL) Fisthardcheese has a pinned thread in the Arbitration section of this forum. In it is a basic template of a motion to compel arb and stay the case. It is advisable to include the Oklahoma rules and statutes, and precendential court rulings as grounds and authority in your motion. The Oklahoma thread you first posted in has a draft motion and Oklahoma-specific info for you to research. 

[Okiemom 0]

Served 5/8, so filing my answer tomorrow, 5/28. Couldn't file today because of holiday and don't know if the holiday gives me an extra day or not. I was going to respond in a few days with the motion for arbitration after filing my answer if I could.

Creditor is Barclays bank. No account agreement was attached to complaint, but I have one I found. Last payment was made in January 2018. I had to cash out my 401k plan after both my husband and I lost our jobs in fall of 2016, so that I could continue to pay all my bills & creditors. Once the money ran out couldn't pay past January 2018. Was not able to get a job in my field so had to take a job making way less than half of previous income at walmart and went back to college (so now have student loans that will take precedence over paying past creditors).

I am going to file bankruptcy because there is too much that has racked up, but between school and working 40+ hours hadn't had time to gather everything to file yet. Got served by love Beal for Barclays before I have been able to file bankruptcy.

I am not sure about asserting arbitration as affirmative defense, will have to finish reading up on that tonight at work.

Edited May 28, 2019 by Okiemom
Spelling

[Okiemom 0]

I may have to file a motion for extension of time, as it does not require a brief or list of authorities, but that would require me to contact plaintiff atty to see if the agree or object to motion for extension of time and am afraid they will get me caught up on trying to hassle me and threaten me to settle or clue them in that I am filing something they won't like.

[Harry Seaward 1,356]

Have you run though the BK means test for your state (Google it)? You need to know if that's even an option.

Be advised that arbitration won't deter Barclay's, if in fact they are who is suing you. 

[Okiemom 0]

Yes, I have done the BK means test and even had a certificate of credit counseling at one time, but it has expired and I need to do that again as it is required prior to filing bankruptcy. I don't plan on winning against Barclay (even in arbitration, though the amount owed is $2,500), I just need to obtain some time to be able to file the bankruptcy prior to them obtaining judgment and pursuing garnishing what little wages I get. The next creditor coming after me will probably be discover and I won't have a fighting chance against them due to the balance being bigger. 

[Harry Seaward 1,356]

5 hours ago, Okiemom said:

even in arbitration, though the amount owed is $2,500

The amount is irrelevant. They will arbitrate a $500 debt. Same for Discover, and any other OC we've seen take the bait on arbitration. 

[Brotherskeeper 909]

12 hours ago, Okiemom said:

I am not sure about asserting arbitration as affirmative defense, will have to finish reading up on that tonight at work.

Conn Appliances Inc. v Powers, 2018 OK CIV APP 25, 417 P. 3d 390

¶ 7 :

"Additionally, it is settled that in Oklahoma, the existence of an arbitration agreement is an affirmative defense, which by definition may be waived.

The contractual right to compel arbitration has been treated as a defense to an action on the contract. ... An agreement to arbitrate is treated as an affirmative defense by the Federal Arbitration Act. ... Thus, a party may waive its contractual right to compel arbitration.

393*393 Shaffer v. Jeffery, 1996 OK 47, ¶ 6, 915 P.2d 910. See also Towe Hester & Erwin, Inc. v. Kansas City Fire & Marine Ins. Co., 1997 OK CIV APP 58, 947 P.2d 594 (cert. denied)."

[Okiemom 0]

43 minutes ago, Harry Seaward said:

The amount is irrelevant. They will arbitrate a $500 debt. Same for Discover, and any other OC we've seen take the bait on arbitration. 

So should I not bother to file a motion to compel arbitration then? Just file an answer denying the allegations to give me the time to file the bankruptcy? I don't have any extra money I can save up to try to settle, as both my husband and I are not making much compared to what we made before we lost our jobs (about 30% what we used to make before) and what we had in savings & 401k was used up trying to pay bills for over a year before we could find new jobs (that unfortunately pay less). 

How quickly could/would arbitration move with these OC's?

[Okiemom 0]

Does this read funny?

The arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.

Is this language saying that arbitration agreement will prevent discharging this debt in bk? It almost reads like it does, but then it seems to state the opposite in the next sentence.

I need to file the Answer today, Would I be okay to mention the arbitration as an affirmative defense after I deny the claims? And still be okay to file the motion to compel arbitration and order at the end of the week? I have to work tonight and need to get some sleep, as I haven't slept yet since last night's shift.

[Harry Seaward 1,356]

Arbitration will be about the same time it would take in court. But, unless your agreement says otherwise, you'll have to pay the $200-$250 initial arbitration fee.

That agreement is simply saying that the agreement survives BK. In other words, you could still use arb if after your BK, you have claims against them. BK is BK. They can't come after you for any debt discharged in BK.

[Brotherskeeper 909]

20 minutes ago, Okiemom said:

I need to file the Answer today, Would I be okay to mention the arbitration as an affirmative defense after I deny the claims? And still be okay to file the motion to compel arbitration and order at the end of the week? I have to work tonight and need to get some sleep, as I haven't slept yet since last night's shift.

(IANAL) If you're going to file an Answer, listing an agreement to arbitrate the disputes of the subject account as an Affirmative Defense preserves your right to file the MTC later. 

[Okiemom 0]

@Brotherskeeper@Harry Seaward

Thank you both so very much! I have done so much research into bankruptcy over the past year, that I don't think my brain was able to comprehend everything I was trying to absorb about arbitration the past few days. I greatly appreciate your patience with me. Your experience and input is very valuable!

[Okiemom 0]

42 minutes ago, Harry Seaward said:

Arbitration will be about the same time it would take in court. But, unless your agreement says otherwise, you'll have to pay the $200-$250 initial arbitration fee.

That agreement is simply saying that the agreement survives BK. In other words, you could still use arb if after your BK, you have claims against them. BK is BK. They can't come after you for any debt discharged in BK.

Thankfully there is language in the arbitration agreement that they will reimburse me for the difference in cost between arbitration or filing in small claims court.